R v Onderstal (No 2) - [2022] SADC 69

District Court of South Australia
(Criminal)
R v ONDERSTAL (NO 2)
[2022] SADC 69
Reasons for Ruling of her Honour Judge McIntyre
1 June 2022
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED - OTHER MATTERS
The defendant has been declared liable to supervision for two counts of maintaining an unlawful sexual relationship with a child and two counts of aggravated indecent assault under Part 8A of the Criminal Law Consolidation Act 1935 (the Act). Consideration of release on licence under s269O of the Act, conditions of licence, limiting term and the imposition of intervention orders under s28 of the Sentencing Act 2017 and the Intervention Orders (Prevention of Abuse) Act 2009.
Held:
1. The defendant is to be released on licence under s269O of the Act subject to conditions with a limiting term of 12 years.
2. Intervention orders are to be imposed in respect of the victims of each count.
Criminal Law Consolidation Act 1935 (SA) 269NB(2), s.267MA(5)(b), s.267W, s.269R, s.269T, s 269Q, s.269O,; Sentencing Act 2017 (SA) s 11, referred to.

R v ONDERSTAL (NO 2)
[2022] SADC 69
Decision

The defendant, Mark Andrew Onderstal, has been declared liable to supervision for four offences under Part 8A of the Criminal Law Consolidation Act 1935 (the Act).
I have determined that the defendant ought to be released on licence with conditions and that a single limiting term of 12 years is appropriate. In addition, I will impose intervention orders for the protection of the victims. These are the reasons for my decision.
Background
The defendant was charged on Information in this Court with two counts of maintaining an unlawful sexual relationship with a child and two counts of aggravated indecent assault.
The first count of maintaining an unlawful sexual relationship took place between 30 November 2001 and 1 July 2002 and the second between 31 December 2013 and 1 January 2019. The first aggravated indecent assault took place between 10 September 2018 and 12 September 2020 and the second between 31 July 2019 and 1 March 2020. The victims of these offences were all related to the defendant.
The victim of the first maintaining charge was aged between 14 and 15 at the time. The defendant was at the time aged between 18 and 19. The victim of the second maintaining charge was aged between 8 and 13 years of age. The defendant was aged between 30 and 35 years of age. The victim of the first indecent assault was then aged between 8 and 10. The defendant was 35 to 37 years of age. The victim of the second indecent assault was then aged 9. The defendant was aged 36.
An investigation into the defendant’s mental fitness to stand trial was ordered under Division 3, Part 8A of the Act. For the reasons set out in my decision dated 7 September 2021, I found that the defendant was not fit to stand trial. I recorded a finding to that effect under s.269MA(5)(b) of the Act.
On 4 November 2021 Mr Lyons, who represents the defendant, exercising his discretion under s.267W of the Act, agreed the evidence contained in the declarations. Having considered the declarations I was satisfied that the objective elements of each offence had been proved beyond reasonable doubt. I declared the defendant liable to supervision under Part 8A of the Act. I ordered reports under s.269T and 269R of the Act and noted that a psychiatric report would also be provided to the Court under s.269Q of the Act.
I was subsequently provided with the following reports:
·Dr Robyn Young, Clinical Psychologist dated 27 November 2021
·Victim and Next of Kin Counselling Reports by Ms D’Alessandro dated 17 December 2021, 11 January 2022 and 22 March 2022.
The statutory scheme
Section 269O of the Act provides that, if a defendant is declared liable to supervision, the court may release the defendant unconditionally, make a supervision order committing the defendant to detention or release the defendant on a licence with conditions decided by the court and specified in the licence. Section 269O further requires that, if a court makes a supervision order, it must fix a limiting term equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would have been appropriate if the defendant had been convicted of the relevant offences. The non-parole period that would have been set is not to be considered. Section 269O (2) further authorises the fixing of a single limiting term for all matters in relation to which the defendant has been declared liable to supervision.
In fixing the limiting term, the court must consider the primary and secondary sentencing purposes set out in sections 3 and 4 of the Sentencing Act 2017, and the individual sentencing factors set out in s.11 of the Sentencing Act 2017 except those impacted by the mental impairment of the defendant. The court is further obliged to have regard to the matters set out in s.269T(1).
The paramount consideration for the court in determining whether to release a defendant, or in determining the conditions of a licence, must be to protect the safety of the community whether as individuals or in general. This paramount consideration outweighs the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to a minimum (s.269NA of the Act).
Detention or release?
The details of the defendant’s personal circumstances and his mental condition are outlined in my ruling dated 7 September 2021. In short, the defendant has a very significant intellectual disability placing him on or below the first percentile of the population. This disability is compounded by a significant hearing loss and his autism spectrum disorder.
My ruling was based upon previous reports by Dr Young together with her evidence at the hearing. In her most recent report Dr Young sets out a suggested treatment plan for managing the defendant’s condition. Dr Young says that the defendant would experience difficulties if he was detained due to his disabilities. Further, he would not be able to access all the necessary rehabilitation and support services in detention.
Many of the goals of treatment would be undermined if the defendant is removed from the community. Dr Young says he needs to learn social behaviours that, for others, are intuitive in order to function appropriately in the community. In particular, Dr Young says that the defendant needs assistance to develop a proper understanding of the wrongfulness of his behaviour and the impact of his behaviour on his victims. The recommended program comprises both individualised psychotherapy and a community based specialised sexual offenders therapeutic service such as Owenia House. Owenia House is a specialist state-wide community-based service providing assessment, education, and therapeutic services for sexual offenders. Dr Young says that it is important that any program he undertakes considers the defendant’s autism and intellectual disability.
Dr Young considers that the defendant ought to register with Autism SA to gain access to support services tailored to individuals with autism spectrum disorder. He would also benefit from engaging the services of a case manager. Dr Young says that there are adequate resources available for the treatment and support of the defendant within the community through these organisations. In addition, he has the benefit of strong social support from his mother and he has a current plan with the National Disability Insurance Scheme (NDIS).
Dr Young undertook a comprehensive risk assessment to assess the defendant’s risk of sexual recidivism and concluded that his risk of recidivism is in the low-risk range for the reasons set out in her report. Although she does not believe that the defendant poses a substantial risk to the community, he needs to be educated in what is appropriate behaviour.
Dr Young considers that the defendant is likely to comply with the conditions of a licence. He has already shown to be compliant and, indeed hypervigilant, with his current bail conditions. He will require guidance as to how to balance the restrictions of the licence with functioning in the community. It is imperative that the conditions described in the licence are explicit and clearly explained to him.
I have also carefully considered the matters set out in the reports prepared by Ms D’Alessandro as to the views of the next of kin. The defendant’s actions traumatised his victims and devastated their families. This trauma is ongoing and impacts many aspects of the victims’ lives and their families. The victims and their families are concerned for both their personal protection and for the protection of the community. These are legitimate and appropriate concerns. They have all been consulted upon the conditions of a licence should the defendant remain in the community.
In light of the material before me I consider that ordering the detention of the defendant would be counterproductive and would not be in the interests of the community. Rather the safety of the community would be better ensured by the defendant receiving the rehabilitation that he requires under strict supervision in the community. I therefore consider that it is appropriate to make a supervision order releasing the defendant on a licence with conditions. In setting the conditions, I am mindful of the requests made by the next of kin and the opinion of Dr Young. Defence and prosecution have agreed, for the most part, on appropriate terms for the licence and a draft licence has been prepared. I am satisfied that the agreed conditions are appropriate and necessary.
The only area of dispute is that that prosecution contends that the defendant ought to be placed on electronic monitoring conditions whereas defence contends that this is unnecessary given the defendant’s compliance with bail, his disability and Dr Young’s opinion. It is said that such a condition amounts to unwarranted punishment. Having carefully considered the material it is my view that the imposition of electronic monitoring conditions, at least initially, is warranted for the protection of the community. Whilst Dr Young says that the defendant is in the low range of risk to reoffend there is still some risk. He requires considerable assistance, treatment and rehabilitation to avoid a repetition of this offending. Whilst this is being undertaken, the protection of the community and, importantly, his victims will be enhanced by electronic monitoring. These conditions can be reviewed in due course depending upon the defendant’s progress.
The limiting term
As indicated above, a limiting term is fixed under s.269O by reference to the head sentence that would have been appropriate if the defendant had been convicted of each of the offences for which the objective elements have been established. The maximum penalty for each of the two counts of maintaining an unlawful sexual relationship is imprisonment for life. The maximum penalty for each of the two aggravated indecent assaults is imprisonment for 10 years.
Consideration is required of the circumstances of each of the charged offences and whether the sentences would have been concurrent or cumulative. It is necessary for me to examine the individual offences and to place them on a scale of seriousness. In doing this, it is important for me to stress that I view all of the defendant’s offending as serious. All of these children were entitled to be safe from molestation by the defendant. The children were young, three of them were very young, and particularly vulnerable to the defendant. He was a relation and someone who ought to have cared for and protected them. Instead, he groomed and exploited the children, two of them repeatedly, for his own sexual gratification. The offending only ceased when the defendant no longer had access to the victim or when the victim disclosed the sexual offending. His offending took place over many years; some of it overlapped. The defendant’s pattern of offending demonstrates that his sexual conduct was not simply that of an intellectually disabled and immature man. His offending was persistent and protracted.
The effect of the defendant’s behaviour upon his victims and their families cannot be overstated. The next of kin reports and the victim impact statements clearly show that his actions have had devastating and long-lasting effects. This is not unusual or unexpected in the courts’ experience of dealing with victims of sexual offending.
The victim of the first maintaining charge was aged between 14 and 15 at the time. The defendant was at the time aged between 18 and 19. The offending comprised the defendant touching the victim on the vagina on four to five occasions.
The victim of the second maintaining charge was aged between 8 and 13 years of age. The defendant was aged between 30 and 35 years of age. This offending comprised touching the victim’s vagina and inserting a finger into her vagina. The victim says, and I accept, that there were 9 to 11 incidents in total.
The victim of the first indecent assault was then aged between 8 and 10. The defendant was 35 to 37 years of age. The defendant touched the victim’s vagina on one occasion. The victim of the second indecent assault was then aged 9. The defendant was aged 36. The defendant rubbed the victim’s back and stomach on one occasion.
All of this offending reveals a breach of trust of varying degrees given the defendant’s relationship to the victims.
The defendant was closer in age to the victim of the first count of maintaining; he was at the time a teenager. The second maintaining charge is objectively more serious owing to the defendant’s age, the extreme youth of the victim at the time the offending started, the nature of the offending and the length of time over which the offending occurred. There was also a particularly gross breach of trust involved in this offending.
The two indecent assault charges involve a single incident of touching with victims who were much younger than the defendant. He was in a position of trust in relation to each of these children, his offending represents a gross breach of that trust.
Sentencing considerations
The defendant has limited criminal history however, given all of the circumstances of this particular matter, this is of limited relevance.
General and personal deterrence are relevant to the setting of a notional sentence and limiting term. This is in many respects an artificial exercise given I cannot have regard to matters based upon or arising out of the defendant’s mental impairment in circumstances where his impairment would normally be a significant factor in sentencing. Accordingly, personal deterrence is relevant and ought to be taken into account notwithstanding the defendant’s mental impairment. I note further that the defendant meets the criteria for a serious repeat offender. If I was sentencing in the ordinary course, it would not be necessary to impose a proportionate sentence and the non-parole period would be required to be at least 4/5ths the head sentence.
I was referred to several cases during submissions. In relation to the two maintaining charges the cases of R v D (1997) 69 SASR 413 and Edmonds (A pseudonym) v. R [2022] SASCA 11 provide useful guidance. R v D sets out notional head sentences for victims of that offence depending on their age. The Court of Appeal in Edmonds stressed the need for that standard to be applied flexibly stating (at para 56):
That said, it remains appropriate, indeed necessary, in every case to examine closely the nature and extent of the abuse that the offender engaged in, its effect upon the particular victim, and the circumstances of the defendant. Here, and without intending to diminish in any way the force and significance of our earlier description of the seriousness of the applicant’s offending against A and B, it was relevant that in some of the other cases attracting the standard in R v D the victims were younger than here. Further, some of the victims in those other cases have also been subjected to a greater number, frequency and range of sexual abuse than the present victims, including abuse of an even more depraved and intrusive nature than the applicant inflicted upon A and B.
As outlined above, the defendant engaged in this serious offending over a significant period. His offending was not isolated or impulsive. He has caused devastation to his victims and their families. The community requires protection from offending of this type which is regrettably far too prevalent. The limiting term that I set must deter both the defendant and others from similar offending. On the other hand, whilst the offending spans almost two decades, the frequency was intermittent. Further, the offending is not aggravated by any degree of depravity or violence; factors which are often present in such offending. Nor was there any coercion although plainly the defendant was at pains to groom his victims and was moreover in a position of trust with each victim. He further took steps to ensure that they did not complain and, when apprehended, sought to deflect some blame onto the victims by saying things such as they were “ok” with what he was doing.
I consider that a starting point for the maintaining offences ought to be somewhat lower than that outlined in R v D; for count one it would be in the order of 5 years and for count 2 in the order of 8 years. For the aggravated indecent assaults my starting point would have been in the order of 3 years for count 3 and 2 years for count 4. It would then be necessary to consider issues of proportionality and totality. If I were to impose sentences for these offences, I would have made the sentences partially concurrent to reflect the fact that the offences overlap in time and because, whilst there are different victims, the defendant’s conduct was similar because he selected family members and engaged in very similar physical acts with each. This was not a single course of conduct, but it is appropriate in my view to allow for some reduction in the sentence for partial concurrency. In the circumstances I consider it appropriate to set a single limiting term of 12 years.
Finally, I impose intervention orders in terms of the draft orders provided by the prosecution.